In the case that is the most critical to understanding the Obamacare case, Gonzalez v. Raich, justices Kennedy and Scalia both voted to uphold the statute in question.
California had passed a law making the possession of marijuana for medical purposes legal. But Congress had previously made possession of marijuana illegal nationally by passing the Controlled Substances Act. Two California residents with prescriptions to use marijuana were accused by federal agents of violating the CST.
The residents challenged the constitutionality of the statute on the grounds that it exceeded Congress’s power under the Commerce Clause. In a 6-3 opinion, the Court upheld the statute.
The majority opinion, which Justice Kennedy signed and Justice Scalia’s concurring opinion illustrate why Obamacare is clearly constitutional if the Court looks at the case purely from a Commerce Clause perspective.
In the majority opinion, the Court explained that it was constitutional to apply the statute to the two California residents because the statute clearly regulated interstate commerce (the interstate market for marijuana) and it was reasonable to conclude that if the regulated activity (possession) were not regulated, the regulatory scheme could be undercut. The Court stated that, “When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.”
The Court distinguished the case from Lopez and Morrison because in those cases, the parties had argued that the entire statutory schemes fell outside Congress’s Commerce Clause power. However, in the Raich case, there was no question that the CST generally regulated interstate commerce. The challenge was limited to the application of the statute to individuals consuming marijuana that had not passed through interstate commerce. The Court said that the distinction was critical. If a statute properly regulated interstate commerce, it was permissible for that statute to have effects on purely local activity.
By extending that logic to the Obamacare case, the statute seems to clearly comply with the Commerce Clause. There can be no question that Obamacare is a regulation of interstate commerce. The healthcare market is one of the largest commercial markets in the US. So, even if the Court were to determine that the individual mandate involves purely local activity, the statute would comply with the Commerce Clause.
Indeed, even Justice Scalia would seem to agree with that analysis: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”
So, it would seem that the Obamacare case is a simple one. Indeed, some pundits claim that it is. But it is not. The reason is that the Obamacare case is not a pure Commerce Clause case. The purpose of the statute almost certainly complies with the Commerce Clause. But it is not entirely clear that the means are constitutional. Obamacare requires individuals to purchase a product on the private market. This is something that none of the three cases that I have discussed, nor any other case the Court has decided has had to deal with.
Thus, the result of the case is not a foregone conclusion. Justice Scalia, an intellectually honest man, will not vote inconsistently with his opinion in Raich. However, he could write an opinion holding Obamacare unconstitutional using the following argument: The Court’s Commerce Clause jurisprudence states that Congress can regulate the healthcare market and the regulation can affect entirely local activity. However, Congress must use means consistent with constitutional principles to effect the legislation. Forcing individuals to make purchases on the private market is entirely inconsistent with the Constitution (based on a historical analysis of the framers’ beliefs on the topic). Therefore, the individual mandate is unconstitutional.
Now, the Court may not decide the case using that argument. In fact, I would predict that the Court will uphold the constitutionality of Obamacare. However, do not believe the commentators that assert that this is a simple or easy case. It is entirely possible that the Court will find Obamacare unconstitutional. And if it does so, it will do so for legitimate means.